Sweden’s 1841 Freedom of the Press Act: §1:9 and the limitation of the terms of copyright

Martin Fredriksson

Please cite as: Fredriksson, Martin (2023) ‘Commentary on the Swedish Ordinance on the Limitation of Terms of Protection (1841)’, in Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, www.copyrighthistory.org

1.         Full Title

Royal Majesty's and the Estates of the Realm's Established FREEDOM OF THE PRESS ORDINANCE. Dated Örebro, 16 July 1812. With the subsequent changes, and lastly at the Riksdag in Stockholm in the years 1840 and 1841, adopted by the King and the Estates of the Realm.

Kongl. Maj:ts och Riksens Ständers faststälde TRYCKFRIHETS-FÖRORDNING;

Dat. Örebro den 16 Julii 1812. Med de derefter, och sist wid Riksdagen i Stockholm åren 1840 och 1841, af Konungen och Riksens Ständer antagna förändringar.

2.         Abstract

In the mid-19th century Swedish copyright law was regulated in the Freedom of the Press Ordinance of 1812, which merely stated that ‘Any writing is the property of the author or its legal proprietor’. This implied that copyright was to be seen as any other property right and that the ownership of texts was unlimited in time. This changed in 1841 when Sweden passed an addition to the copyright paragraph stating that copyright protection expired if the copyright holder or its heirs did not publish or reissue the works within 20 years. Since the copyright holders were still allowed to republish the work as many times as they wished, the law in practice still allowed for an infinite extension of the copyright protection. This revision was nevertheless principally important since it was the first time that Swedish law acknowledged that literary property needed to be addressed differently from material property. The discussion preceding the revision also introduced the interests of the public in Swedish copyright law for the first time, as it referred to the need to make literature publicly available as an argument for imposing potential limitations on the terms of protection.

3. The 1841 the limitation of the terms of copyright takes shape

In the fall of 1840 the Swedish parliament passed a revision of the Freedom of the Press Ordinance that for the first time imposed a limitation of the term of copyright protection in Swedish law. At this time the ownership of texts was codified in § 1:9 of the 1812 Freedom of the Press Ordinance (originally formulated as 1:8 of the first version of the Ordinance from 1810). The rights of authorship played a marginal role in the freedom of the press legislation, where it was confined to one single paragraph stating that ‘Any writing is the property of the author or its legal proprietor’. This formulation implied that copyright was to be seen as any other property right and thus applied without any limitations in terms. The revision of the Freedom of the Press Act, which entered into force in 1841, put an end to that by declaring that copyright expired 20 years after the author’s death unless the rights holders had published or reissued the work within that period.

If § 1:9 of the Freedom of the Press Ordinance previously only established that every text was the author’s legal property without even addressing the question of a time limit for this property right, the revised law elaborated on the topic in the following addition:

Every Writing is the property of the Author or his rightful proprietor. But as soon as the Author’s heirs or rightholders have not within twenty years of his death used the right of publication, or if such use is not renewed by them within every twentieth year, anyone is free to print and publish the Author’s remaining Writings.[1]

In practice, this was a minor change. Since the new law allowed the author’s heirs to extend the term of protection any number of times, they could still retain the rights forever if they wished. The significant difference was that the rights holders now had to make efforts to regularly publish new editions of the work in order to keep their exclusive rights. This was not so much an attempt to challenge the right of the copyright holders but rather a way to ensure that works of great cultural value would not be kept from the public merely because indifferent heirs or other rights holders took no interest in keeping them in circulation.

Even if this provision had no major practical significance, it was principally important because the law now implicitly stated that literary property rights could not unconditionally be equated with any other property right. The legislators of 1810 had made no distinction between literary property and material possessions when they assumed, without discussion, that the literary property right would be eternal and unlimited.[2] The 1841 changes to the Freedom of the Press Ordinance questioned this assumption. When presenting the proposition, the Constitutional Committee argued that although a perpetual and unlimited copyright could be justified if copyright was regarded as a property right among others, it could also mean that works of great cultural value were kept from the public.[3] It was thus only now that the Swedish legislators realized what had been on the agenda in Europe for a long time: that unrestricted protection of the author’s rights might hamper public access to literature.

Just as when the copyright paragraph §1:9 was first introduced, this addition attracted little interest. When the proposal was presented at the 1835 Parliamentary meeting, it was approved without debate for consideration at the next Parliament (at this time a constitutional amendment had to be approved at two Parliamentary meetings, which took place once every fifth year). When the proposal was presented again in 1840, it only sparked a brief debate when one member of parliament, Theodor Foenander, questioned whether the proposal violated the general principle of property right. He admitted that an unlimited term of protection could hamper public access to culturally significant literary works but pointed out that this risk was marginal and did not justify treating property rights to texts differently from other property rights. Objecting to this typical natural law argument, Per Johan Lagergren, lawyer and member of parliament, claimed that limiting the terms of protection was necessary to make literature available, but also that the new proposal was an adaptation to the recent development of copyright in the rest of Europe.[4]

4. The Swedish law in an international context

The Swedish legislation did, indeed, differ from the legislation in the rest of the world where only two other countries, Mexico and Guatemala, recognized a copyright without a time limit.[5] In this respect, one can of course see the 1841 legislation as an adaptation to international legal standards. During the first half of the 19th century, other European countries had also implemented changes that, in a sense, anticipated the Swedish development. In 1810 French law established that copyright protection was hereditary and lasted for 20 years after the author’s death. English copyright terms did not last quite as long, but in 1814 they were at least extended to apply for the lifetime of the author, and in 1842 English law also stated that copyright was hereditary.[6] Thus, the term of protection was under revision in many parts of Europe at this time and Swedish legislators appear to have been influenced by the French law.[7] However, the French or English legal developments can hardly be described as parallel to those taking place in Sweden: both the French and the English changes extended the term of protection, while the revision of the Swedish Freedom of the Press Ordinance reduced them. In this respect, France and England were more aligned with the development in the rest of Europe where the general tendency was towards longer protection terms.[8] In relation to the international legal situation, Sweden developed in a converging rather than a parallel direction, but the outcome was still a step towards increased harmonization with international standards on copyright legislation that were emerging at the time.